I asked this question in the Alina Habba thread and the first response I got was Trump-specific; I am actually after a more global answer.
In courtroom dramas (I don’t know how often it happens IRL), there’s the frequent “Objection!” followed by “Overruled” or “Sustained”. What I’ve always been curious about is if courtroom lawyers deliberately introduce “objectionable” content into trials, even if (and/or especially knowing that the objection will be sustained, just so that the idea is planted in the minds of the jurors, even if the jurors are told to disregard the objectionable content. In other words do trial lawyers do this to subliminally bias or influence the jurors’ thought processes?
I believe if you do this in a way that’s severe or prejudicial enough, you could get sent to a retrial (and the attorney doing it would catch a Contempt of Court charge).
It happens, but I’d say that’s rare. Usually the lawyers just really disagree on what’s relevant, what would be covered by a hearsay objection, or what would be more prejudicial than probative. When you’re trying to get your facts in front of the jury, you naturally would tend to believe those facts are admissible. And the opposite is just as true. Hence, the judge has to sort it out.
I was sued in small claims court. Both sides were pro-se, but I actually prepared with a lawyer friend coaching me a bit. Two minutes into the trial, I objected because of hearsay. My objection was sustained and the judge patiently explained why.
A minute later I objected again because of hearsay and my objection was sustained. After a few more objections, the other party dropped a few “F Bombs”. I won !!
I assume that too many shenanigans would get a lawyer cited for contempt, and cited to the bar for discipline.
In a recent trial currently under way and highly discussed on TV, the defense tried to say during opening arguments that along with the alleged crimes his client was charged with, he did not have sexual relations with one of the key prosecution witnesses. The prosecution objected immediately.
Presumably since the defense cannot introduce testimony to this effect without the risk of being accused of subborning perjury, this was a valid objection.
My point here is that the jury would certainy pick up on the contradiction between a lawyer asserting something at some point, then failing to back it up with sworn testimony. (While the other side presumably provides testimony to the opposite situation). This is a risk with this sort of off-hand attempt to plant doubt, that the jury will note that the innuendo or misdirection is not backed up with evidence and it may have the opposite effect.
Judges generally don’t like games. Courtrooms are very rarely as dramatic as they are on TV. Most questions of admissibility are ironed out pretrial or away from the jury.
A “motion in limine” is a pretrial motion that seeks the exclusion of specific evidence or arguments from being presented during a trial. A motion in limine is decided by the judge outside of the presence of the jury. The purpose of a motion in limine is to address potentially prejudicial, irrelevant, or inadmissible information that could unduly influence a jury or hinder the fair administration of justice.
By filing a motion in limine, attorneys aim to prevent the opposing side from presenting evidence that could be highly emotional or legally problematic, thus avoiding any potential prejudice that could arise.
What I have noticed more lately is how often on TV they object to relevance. Like on the first question. For some reason they make it seem like the testimony has to be a surprise to the judge. Instead of having a sidebar and finding out where the questioning is leading and then ruling on it, they let the questioning go forward. “Make it quick counselor.”
Here’s an interesting case in Toronto, concluded just a few days ago:
Judge questioned Crown’s ‘morphing’ theory
Several times during the trial, the presiding judge questioned the Crown’s changing theory about what happened on July 2, 2021, at one point saying she didn’t see how the jury could convict Zameer of even the lesser second-degree murder charge.
During legal arguments not heard by the jury, Ontario Superior Court Justice Anne Molloy repeatedly raised concerns about the prosecution’s changing narrative about where and how Northrup was struck.
Prosecutors Michael Cantlon and Karen Simone raised new theories after all their evidence had been presented to the jury, including some that were not brought up during their own crash reconstructionist expert’s testimony.
One such theory — that Northrup was “clearly visible” to Zameer when he was hit regardless of his position, which itself is in dispute — was abandoned only days before lawyers made their final arguments to the jury, after Molloy said she was struggling to understand it.
The Crown’s position “keeps morphing,” the judge said Monday during legal arguments over her instructions to the jury.
So it seems the judge discussed(?) what the crown’s summation would be and what they were allowed to say - without the jury present - to ensure they did not stray beyond acceptable bounds, and claim situtations/scenarios that evidence say did not exist.
The essence is two plainclothed officers rushed the car Zameer and his family were in, in an underground garage. Police testify he went back and forth to evade, struck the officer who was standing in plain view in front of him. Video and crash reconstruction contradicted this - the officer was not visible on the video, likely had already fallen out of sight when Zameer went forward; so now the crown tries to claim the officer was still standing and visible to the driver to the side of the car, hidden in the video, despite no evidence of that presented at trial.
I wasn’t aware the summation had to be cleared with the judge beforehand(?) but somehow this discussion took place before the summations.
Probably because the judge has already ruled in or out what evidence can come in during the motion in limine pretrial stage, so s/he knows where the line of questioning is headed. Might be it’s been ruled that X can come in but not X+A, and the objector is alerting the judge, hey, watch for this. Also the objection is preserving appellate rights on this point despite the motion in limine ruling.
I don’t think lawyers deliberately introduce objectionable evidence, or ask improper questions, on purpose. Lawyers usually have a point to the questions they are asking, and they want that information to get before the jury.
But, I would say that lawyers may object to evidence or information even when they know that it is relevant or admissible. The objection isn’t frivolous, but is calling out the other side for not doing it right.
(In other words, there may be a procedure to follow, or oftentimes are certain questions you should ask first to lay the predicate for what you are trying to get in. If you do it wrong, don’t be surprised if the other side raises objections, or the judge gives you a hard time, unless you follow the correct law. It doesn’t matter that your ultimate objective is legally correct)
Moriarty is exactly right; if you don’t lay a proper foundation you can’t get the testimony you seek even if it’s otherwise admissible.
As to sidebars for every objection, oh, hell, no. Judges will allow one – or require it – when it seems truly necessary, but they don’t want to stutter their way through a trial with constant interruptions to the flow of evidence. Juries tend to resent a lot of sidebars, too; they seem like wastes of their time. Getting most of the evidentiary disputes out of the way pretrial smooths the way for an efficient process.
So my question is basically asking if they do do the above, for the purpose described below:
So let’s say, for example, that a defendant in a child abuse trial is being cross examined by the prosecutor. At some point the prosecutor asks something like “is your workplace located next to a daycare centre?” (let’s assume that it is completely irrelevant) In response the defence attorney calls “objection” and the judge says “sustained”. In this case, even if the prosecutor knows that the question was irrelevant, and he/she knows that it will be objected to, and sustained, he/she asks it anyway, in the hope that it might plant a subconscious seed in the minds of some jurors, just to increase the prosecutor’s chance of a win.
It can happen. It does happen sometimes. The risk, however, is creating a mistrial if the information is so prejudicial that it taints the entire trial. (or violated a motion in limine, which would really piss off the judge). It’s been a long time since I did criminal cases, but I believe a mistrial caused by prosecutorial misconduct means charged dropped because of double jeopardy. Of course, judges know that and would be very reluctant to declare a mistrial absent compelling need.
In the civil cases the judge would tell the jury to disregard the question, remind them that questions by the attorneys are not evidence, and sanction the attorney if they did it again.
This is sort of the key part of the question. I know that I can consciously decide to only focus on the actual evidence. But I know people who, regardless of the judge’s instructions, would still allow that information to taint their critical thinking abilities (assuming they have any to begin with).
Judges have to decide how inflammatory the objectionable evidence was. A prosecutor suggesting “Isn’t it true that you asked for a lawyer before we even found the body in your trunk” would require more than “the jury is instructed to disregard that question. It was improper.” Most things, however, can be dealt with without a mistrial.